Author: Rozenes, M. Date: 09/10/1996 Venue: Keynote address to the Sixth International Criminal Law Congress, Melbourne, 9-13 October 1996
Last month the Chief Justice of Australia observed that : "The courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigant; Governments are anxious to restrict expenditure on legal aid and the administration of justice. It is not an overstatement to say the system of administering justice is in crisis"1 His Honour was speaking of the problems facing civil litigation and I am not to be taken as saying that the criminal justice system is in crisis. However there have been similar dire expressions of concern voiced with respect to criminal litigation. Certainly much has been said about the prospects of the mega trial overwhelming the court system and there are similar concerns expressed about the length and cost of criminal cases and the plight of legal aid. For the past five years, in my capacity as Director of Public Prosecutions, I have by necessity become increasingly aware of the cost of and associated with prosecuting in the various jurisdictions in Australia. Governments of all political persuasions both here, and I suspect overseas, are increasingly concerned with the bottom line. "User pays" has become the order of the day. All public institutions, no matter what service they provide, have been exposed to scrutiny and have been asked to deliver more with less. The justice system has not been overlooked in this exercise. We would like to think that the administration of justice, and in particular the administration of criminal justice, would be beyond the reach of the financial bean counters. After all, are we not providing the most important of all social services - the maintenance of the rule of law? What could be more important? I imagine that educators, social workers, doctors and every other special interest group would have a different answer to that question. I do not propose here to argue that the legal system should be quarantined from the requirements of responsible financial management. I do believe, however, that government should not overlook the fact that the delivery of a fair criminal justice system is a core responsibility of any government in a civilised society and that financial considerations should not dominate consideration of it. There have been a number of specific developments over the last five years which in my opinion have impacted significantly on the cost of delivery of justice.
Dietrich and Legal Aid
One such development involves the impact of the High Court's decision in Dietrich.2 The Court's decision has ensured that at least as far as the judiciary is concerned representation is an essential component of a fair system of justice. In this context, when one would have expected that more was required, it is of particular concern that expenditure on legal aid is being significantly cut back. The Dietrich decision has had an impact in the prosecution of corporate offences where the trials tend to be lengthy, and therefore expensive, and where defendants sometimes have difficulty obtaining legal aid. However, the problem created by Dietrich can arise in any large case where the cost of legal representation will be high. It is not uncommon for defendants in large cases to claim that they cannot afford representation, and if the defendant can satisfy the court that he or she cannot afford legal representation there is usually little the DPP can do to bring the case to trial. The only solution in such cases is for government to ensure that adequate legal representation is available. Otherwise, considerable time, energy and resources will be wasted in investigating serious criminal charges and instituting a prosecution without guilt or innocence ever being determined. Last month the Australian Senate announced that the Legal and Constitutional Reference Committee will conduct a wide ranging inquiry into legal aid in Australia. Such an inquiry is most welcome.
Costs against the prosecution
A second significant development is the increase in the incidence of costs being awarded to successful defendants. When I started practice 25 years ago the award of costs to a successful defendant was a rarity. Today, at least in the courts of summary jurisdiction, it is an every day event - and appropriately so. That a similar rule does not apply with respect to trials on indictment is something of a paradox3 (although the Australian Law Reform Commission has recently stated that there is no compelling reason for maintaining different costs rules for summary and indictable matters, and that generally speaking an accused person who is acquitted in proceedings on indictment should be able to recover his or her costs)4. In my view there is no reason in principle why a successful defendant in a prosecution on indictment should not be able to recover costs in the same way as if those proceedings were summary proceedings, that is, a successful defendant should be entitled to costs as of right, but subject to the discretion of the court to deny or limit that right in circumstances such as those provided for in Latoudis v Casey5. We should question the value of the presumption of innocence if in the process of retaining the benefit of that presumption the acquitted accused is impoverished. The possibility of having to meet a substantial award of costs creates significant concern for the prosecutor. Cost is a relevant consideration in determining whether a prosecution is justified in the public interest and accordingly the Commonwealth Prosecution Policy Statement provides that one of the factors which may arise for consideration in determining whether the public interest will require that a prosecution be pursued is the likely length and expense of a trial.6 The question of the likely length and expense of trial is more likely to weigh against prosecution the less serious is the alleged criminal conduct. To this point of time I do not know of any prosecution for a serious offence that was not pursued solely because of considerations of cost and I hope that such a situation will never arise. The spectre of those who commit sophisticated and complex crime resulting, as it does, in costly investigation and prosecution, being able to avoid prosecution whilst the more simple crimes are prosecuted to the hilt will only bring the criminal justice system into disrepute.
The length of the criminal trial
Footnote7 Finally, there is the perennial question of the increased length of criminal cases. Both anecdotal and real evidence suggests that the criminal trial, whether it be of the short or complex variety, is significantly longer and therefore more expensive than it once was. That trials are too long should be of concern to all, not just those who have to directly fund them. Delay, particularly for those in custody, is perhaps the most unacceptable consequence - but delay also works injustice to those on bail and to the prosecution. Sentencing after extensive delay also becomes somewhat artificial, and tardiness in the resolution of the matter is unfair to victims. Solutions are not easy to find. The obvious and simplistic ones are to appoint more judges and build more courts - but it is unlikely that such proposals would find favour in any quarter. Governments are rightly concerned about the cost of justice and access to justice and will examine expedient measures for achieving value for money if the system does not deliver results at reasonable cost. In this country and overseas that process is underway and we should not be under any mistaken belief that jury trial, the right to silence, and perhaps even such fundamental pillars of the criminal justice system as the presumption of innocence, are sacrosanct. Until now the focus of concern has been at the complex, super or mega trial end. These are the cases that attract public attention. However, there is, or at least there ought to be, as much consideration of the problem at the other end of the scale where due to the vast number of cases the problem is compounded. The inadequacies of the criminal justice system, particularly in complex fraud trials, led in the United Kingdom to Lord Roskill's Fraud Trials Committee Report which laid the basis for the Criminal Justice Act 1987(UK). That Act established a separate procedural scheme for the investigation and prosecution of complex fraud cases. In Australia the Australian Institute of Judicial Administration (AIJA) commissioned a report8 from Associate Professor Mark Aronson, which was presented in 1992. The Australian Standing Committee of Attorneys General considered the proposed reforms at its meeting in August of that year and made in principle decisions, leaving each jurisdiction to develop its own legislation. In NSW, John Nader QC produced a submission to the NSW Attorney General concerning complex criminal trials in September 1993. NSW legislation to implement the Nader Report is currently in the course of preparation. 9 In the meantime, the Supreme Court of NSW has adopted a procedure whereby a callover is conducted prior to trial at which the parties are asked to consent to the making of directions along the lines of the Victorian statutory model.10 In Western Australia, statutory provision has been made for questions of law and fact to be dealt with and admissions made before trial.11 South Australia has also made provision for the determination of questions of law prior to the trial and, like NSW, the South Australian Supreme Court has introduced a system of caseflow management involving pre-trial conferences permitting disclosure by the prosecution and defence.12 Victoria enacted the Crimes (Criminal Trials) Act 1993 (Vic) which in essence requires comprehensive prosecution disclosure with the provision of a case statement to which the defence must respond by providing copies of statements of expert witnesses, replying to any propositions of law in the prosecution statement and indicating any on which the defence proposes to rely. In addition, once the indictment has been filed the defendant must indicate which of the elements of the offence are admitted. Under both the UK and the Victorian schemes the trial judge is permitted to comment to the jury if a party introduces evidence not disclosed at the preparatory hearing. There is also power to award costs for failing to admit facts not genuinely in dispute. The Victorian legislation also provides that upon sentence the judge may have regard to obfuscation as evidencing a lack of remorse. Similar measures have been recommended by Nader QC. There has been substantial debate about the desirability or appropriateness of sanctions. Many are of the view that they are unnecessary and that the dynamics of the exercise will see common sense prevail.13 Others are of the opinion that those proposed to date are ineffective Indications from the UK are that the schemes, as currently constituted, have done little to narrow the issues in dispute. That certainly is the general experience of the CDPP in Victoria with the Crimes (Criminal Trials) Act 1993. However, final judgement should be stayed until detailed analysis has been undertaken. I accept that there are some judges and some counsel who are able to work harmoniously to effect the expeditious resolution of the trial - but very many will not, either because they do not know how or do not see it as in their interest to do so. Ultimately the only sanction worth considering is one that works. Chief Judge Waldron of the Victorian County Court was of the view that in the event of an accused declining to identify the issues in dispute the appropriate sanction is to permit the jury to infer guilt from such a failure.14 The Nader Report15 sought to avoid a general denial by providing that, if a material allegation of fact in the prosecution statement is not specifically pleaded to in the Defence Response, the fact shall be taken to be admitted by the defendant.16 These recommendations have been criticised by the Law Society of NSW on the ground that they completely misunderstand the accusatory system upon which the criminal justice system is built.17 However, as Justice Badgery-Parker of the Supreme Court of NSW recently stated: "the interests of justice are not limited to the interests of the accused but include the interests of the victims of crime, jurors and the community in seeing that crime is punished, the innocent go free, criminal conduct is deterred and public funds are expended wisely." 18 The principle at stake is the fair trial. The issue is whether there is the scope and will to introduce fair and equitable reforms that will address the interests of the broader stakeholders as identified by Justice Badgery-Parker. There is genuine concern that our criminal justice system will not survive if we do not do something to prevent valuable court and legal resources being consumed ventilating issues that could not seriously be put into contention by the defence. It is submitted that we must identify and implement techniques of trial management and pre-trial disclosure that will contribute to the efficient and just conduct of criminal trials whilst at the same time preserving as much of the traditional rights of defendants as are necessary in the interests of justice and a fair trial.19 Effective and equitable procedures are required to crystallise the issues in dispute before a jury is empanelled so that cases can be presented as simply and efficiently as possible. In my opinion, defining or narrowing the issues at trial is essential to the reform of criminal procedure.
Narrowing the issues and the right to silence
The issue of the general denial and whether and if so to what extent something should be done about it raises for debate the continued acceptance that the adversarial system and the right to silence are with us forever. The common law rule enshrining the right to silence, save where it has been abrogated by statute, protects the accused from being required to co-operate with those who are investigating his or her conduct and, in the context of the criminal trial, encompasses the right to decline to indicate a line of defence before the close of the prosecution case,20 or to make any admission of fact that may excuse the prosecution from proof of that fact. The right to silence carries with it the correlative right that the accused should be immune from adverse comment for exercising the right. Accordingly, the right to silence, as described above, permits an accused to utilise a general defence where the prosecution is put to proof on all the facts, whether or not they are in dispute, in the hope that the prosecution will fall at some small but forensically crucial hurdle resulting in the acquittal of the accused. Apart from the obvious resource and financial issues involved, the trial judge, in the absence of knowledge as to what the issues in the trial are, lacks the factual foundation necessary to properly control the proceedings and, in particular, the ambit of examination and cross-examination. It follows that any procedures which are intended to "crystallise the issues" are, at least in the case of an accused seeking to put the prosecution to proof on all matters, nothing less than a significant interference with the right to silence - justified, it is said, because the accused is nevertheless able to put the prosecution to its proof on those matters which are genuinely in dispute. In their joint comments to the Litigation Reform Commission Conference held in Brisbane earlier this year, Chief Judge Waldron and Judge Mullaly of the Victorian County Court commented that "...the community interest of achieving relevant, expeditiously conducted trials well outweighs the accused's interest of wishing to preserve the right to trial by ambush as the system presently allows".21 Certainly the right to silence has in recent years undergone substantial whittling at the hands of the legislature and by the courts both here and overseas. In Northern Ireland, England, Wales and Singapore, the right to silence during the investigation phase has been removed in specified circumstances 22 In Australia, the High Court has decided that the privilege against self incrimination is not available to a corporation.23 The Court has also held that, whereas no adverse inference can be drawn from a late defence following earlier silence,24 silence at the trial by an accused may in certain circumstances provide probative evidence of guilt.25 In relation to the decision in Weissensteiner, the former Chief Justice, Sir Anthony Mason, has commented that "[t]his is not to deny the right to maintain silence; it is merely to recognise that the jury cannot shut their eyes to the consequences of exercising that right."26 Much has already been done in the area of civil justice reform with a view to case management streamlining civil litigation. There is currently a reference before the Australian Law Reform Commission which involves an examination of current adversarial judicial systems. One commentator claimed this heralded the "biggest shake-up ever in the Australian judicial system. " He foreshadowed that "...civil and criminal proceedings in Australia in the 21st century are likely to take place under a fundamentally different set of rules, which borrow from continental Europe and American precedents to allow much more active judicial intervention in proceedings, concentrating much more on core issues, rather than peripheral technicalities or legal technical ploys".27 In fact the ALRC reference is specifically limited to civil cases but should we not also examine whether our criminal justice system is fit for purpose as we enter the next millennium. Provided the defendant's disclosure obligations are limited to that which is necessary to allow the prosecution to avoid addressing areas that are not genuinely in dispute, changes to the right to silence in this limited way may be acceptable.28 Any such changes would have to be accompanied by safeguards to ensure that the prosecution cannot improve its case once the defence position is known or to otherwise make tactical disclosure and in effect split its case. There can be no realistic prospect of requiring the accused to disclose his or her defence unless there has been complete and final discovery by the prosecution. Other techniques: There are other techniques currently in use to manage the criminal justice system. Some are in use to varying degrees depending upon the jurisdiction; others are not and others are still in the contemplative stage. (i) sentence discounts I am firmly of the view that discounts should be given for pleas of guilty irrespective of whether the plea is the product of genuine remorse and contrition. A greater discount should be given for a plea that is the product of genuine remorse and an even greater discount should be given for an early plea. (ii) plea bargaining Plea bargaining, in the sense of charge bargaining, is very much a part of today's criminal justice system. In a recent report to the AIJA the authors reported that: "Our research shows that a well conducted system of discussion, carried out in a professional, honest, ethical manner, based on the fullest possible information, with adequate controls to ensure accurate determinations of guilt and appropriate sentences, and which avoid use of improper inducements, can enhance the justice and the efficiency of the legal system"29 After interviewing judges, prosecutors and defence counsel the authors concluded that : "All agree that identifying guilty pleas early in the process is a good thing as it saves judicial resources and eases the work-load of the prosecution in particular"30 Having made these observations it was surprising that the authors nevertheless recommended that there be no discount for a plea of guilty, although they conceded that if that recommendation was not accepted then any discount should be limited to ten per cent. As I have already said, I am in favour of discounts and not only for pleas of guilty but also for what on some occasions goes hand-in-hand with such pleas - namely the offer of cooperation with law enforcement. I see nothing wrong in principle in offering sentencing inducements to offenders to encourage them to give up their criminal accomplices. Such offenders should, in appropriate cases, be rewarded with substantially reduced sentences. (iii) mediation in criminal matters There is limited scope for the introduction of mediation in criminal matters ie. the use of a neutral third party to facilitate the disputants finding their own solution to a dispute. The Australian Federal Police introduced a Diversionary Conferencing program in the Australian Capital Territory in 1994 whereby the offender, the offender's family or friends and the victim attend a conference to discuss the crime committed with particular emphasis on its effect on those present. The victim is encouraged to seek reparation or compensation. The program operates as an alternative to police cautioning where the offender acknowledges responsibility for the offence and the offence does not involve serious crime, domestic violence or sexual assault. The offenders are usually but not necessarily young people. Early results indicate that the program has been successful. A detailed evaluation has yet to be conducted.31 I support the use of mediation in this limited area but maintain that it will only be appropriate where there is an identifiable victim and has no application to crimes involving the importation, use and sale of drugs or where the offender or victim is a company or institution. Mediation is appropriate in civil cases where the dispute is constituted by two parties seeking a mutually acceptable resolution. This is only one of a number of aims of the criminal justice system, and for that reason the use of mediation should be limited to the circumstances set out above. (iv) court appointed experts The Litigation Reform Commission of Queensland has recommended the introduction of a system where expert witnesses in civil cases will be appointed by the court and the parties will have no right to call opinion evidence. The parties would be required to identify a question requiring expert opinion in their pleadings and the judge may at any time appoint an expert from a list of experts kept by the court to provide an opinion on the question regardless of whether either or both of the parties object to such an opinion being given. The expert would report to the court but whether or not sworn evidence is given would be a matter for the judge's discretion. The parties would have a limited right to question the expert with a view to showing the opinion is based on incorrect facts or is erroneous. The judge may order the provision of a further opinion or appoint another expert.32 The appeal of this proposal in criminal matters is similar to that for civil cases namely: (a) an expert appointed early may resolve an issue and prevent the need for a trial; (b) even if the expert's opinion did not resolve the issue, it would reduce the cost to the parties of contesting the issue; and (c) faced with opposing expert opinions, a judge without the relevant expertise would not be left to decide between adversarial experts. Such a proposal represents a significant modification of the adversarial model. In relation to (a), I see difficulties in the court selecting a suitable expert and in the defence having only a limited right to cross-examine such an expert. Criminal matters, particularly complex fraud, often involve expert opinion on questions of accounting that are dealt with regularly in civil cases. However, they can also involve questions of forensic science. Expertise in this area was formerly limited to law enforcement agencies, and reputable private forensic scientists are still rare. It would not be appropriate for a forensic scientist employed by or associated with law enforcement to provide the only opinion, particularly where the right to cross-examine is limited. Similarly, forensic science is an enormous field and a particular scientist may only possess the relevant expertise in a discrete area. It is difficult to envisage the court being in a position to identify the area of expertise and the most qualified expert in that area. In relation to (b), in criminal cases expert opinion will usually be obtained early in the investigation of the offence to determine whether or not there is a basis for proceeding. The same is true in relation to many civil cases eg. a plaintiff alleging negligence by their medical practitioner would be poorly advised if they commenced an action without first obtaining an expert medical opinion. In these circumstances, the court-appointed expert would be providing an additional opinion and the defendant or party would continue to employ their own experts to advise them in relation to the court appointed expert's opinion. The cost saving may not be as great as imagined and the system may create duplication. Finally, it is inevitable that there will be opposing expert opinions on some matters. There is no easy solution to this problem. The assessment of expert evidence should proceed on the same basis as the assessment of a lay witness. Judges are in the best position to do so. I see little scope for the application of the Litigation Reform Commission proposal to criminal matters. (v) Should jury trials be replaced by some and what other mode of trial in respect of complex commercial crimes? The Report of the NSW Law Reform Commission The Jury in a Criminal Trial (1986) found that the jury is the most appropriate means of determining the guilt of people who are accused of committing serious crimes.33 This is not an issue for Commonwealth matters as S80 of the Constitution requires trial by jury for offences against the Commonwealth tried on indictment. Those who favour dispensing with juries argue that juries are ill-equipped to deal with complex commercial matters, they increase the length and cost of trials, make decisions not based on rationality and are susceptible to prejudice. Supporters of the jury system argue that the jury brings a collective broad experience and the conscience of the community to its decisions. The most favoured alternative to the jury system is trial by judge alone. Provisions have been introduced in South Australia, Western Australia, NSW and the Australian Capital Territory to permit an accused person committed for trial on indictment in the District or Supreme Courts to elect to be tried by judge alone.34 These provisions are not limited to trials involving complex commercial matters. The judiciary has expressed doubt that the proper management of complex commercial cases requires the replacement of the jury because deciding guilt in serious cases requires the application of community standards of what is fair and just.35 There is frequently little dispute in complex commercial crimes as to what occurred and the issue is whether or not the accused was dishonest. This is a judgement that relates to community values and it is most appropriately made by a jury. A jury verdict will enjoy community acceptance and not expose individual judges to criticism. Trial by judge alone, if available, should always be at the option of the accused and with the consent of the prosecution. I endorse the following comments of Justice Badgery-Parker: What we risk losing, by abandoning or reducing the use of juries, is the community advantages which a trial by jury brings - community participation in the administration of the criminal law; and increased community confidence in its outcomes.36 Finally I would like to briefly touch upon three other matters which are on your agenda over the next few days: (i) Independent Prosecutors Tomorrow morning the question posed is "Do we need independent prosecutors?" In June 1996 the National Commission of Audit report to government contained some comments in relation to the DPP. The report acknowledged the importance of retaining an independent Director of Public Prosecutions to determine whether or not to prosecute, which is to be welcomed. However, it went on to state that "there appears no reason why the action leading to that decision and the subsequent prosecution activity .... should not be made contestable and contracted out". There are fundamental difficulties with such a proposal. Chief among these are that the Director would lose control of the prosecution process if he or she lost control over the prosecutors. While the DPP currently prosecutes the majority of its caseload using in-house resources it retains barristers from the private bar, acting on instructions from DPP officers, on those cases that require skills that are not available in-house. However, there is a difference between bringing in outside skills when they are needed and handing over effective responsibility for the conduct of the prosecution process. Privatisation of the process would lead to fragmentation with consequent loss of expertise, consistency and efficiency. There would be an inevitable reduction in the quality and integrity of the prosecution process and in the Director's ability to ensure that the system operated fairly and with proper concern for the rights of all citizens. A cornerstone of our great democracy is the criminal justice system. As long as it is able to fairly and justly resolve disputes between the citizen and the State it will retain public confidence in the administration of justice and serve us well. That confidence will only be earned when the process of prosecution is conducted and seen to be conducted in the public interest by an independent prosecutor without fear or favour. We presently have such a system and we should guard it jealously. There seems to be an almost indecent obsession these days with the bottom line. At the moment the decision to prosecute is made by lawyers who are independent of the investigation and of any political pressure, and who have no material interest in whether or not the prosecution proceeds. Can it be confidently asserted that a similar approach would necessarily be taken by a firm of private lawyers who for understandable reasons of profit are driven to ensure that their bottom line is not too close to the bottom. (ii) Committal proceedings Who needs a committal? We all do. Or at least that is my opinion. As a general proposition I am strongly of the view that the committal process ought to be retained and that it should serve as an opportunity for a reasonable and responsible testing of the prosecution case. Committal proceedings not only provide the accused with an opportunity to see the strength of the prosecution case, and thus may encourage a timely plea of guilty, but a committal hearing also permits the prosecution to gauge the viability of its own case. It is one thing to make an assessment about there being reasonable prospects of a conviction on the untested witness statements and quite another once a witness has been subjected to cross-examination. This is not to say that I am in favour of retaining a system which permits the committal process to be hijacked by the unscrupulous with a view to frustrating the criminal justice system and thwarting the timely disposition of business before the courts. I am not. The propensity for such to occur has unfortunately been amply demonstrated in a number of jurisdictions. There is a need to reform the committal process. Appropriate measures need to be put in place to permit magistrates to refuse to make witnesses available for cross-examination where the magistrate is satisfied that "it would be frivolous, vexatious or oppressive in all the circumstances" 37 to require the witness to attend. Further, magistrates must be given specific statutory powers to "restrain oppressive, irrelevant and repetitious cross-examination"38. Finally magistrates need to be encouraged, educated and supported in the application of such powers. One assumes that the DPP will always be astute to ensure that on the face of the untested material there are reasonable prospects of securing a conviction. This is, after all, a threshold test for the decision to prosecute. One would have hoped that the committal would be an occasion for some value to be added to that process - a real testing of the prosecution contention and of its witnesses. The earlier that assessment is made the better. (iii) Crown Disclosure Another topic for discussion at this Congress is the question of disclosure. Disclosure is usually debated in the context of Crown disclosure. Yet, it must follow from what I have said about narrowing the issues that I believe that there is a need for a form of defence disclosure sufficient to enable the trial to truly focus on the real issue in dispute. There is no rational basis upon which we can expect the defence to make disclosure of anything unless and until there has been complete disclosure by the prosecution. By disclosure I not only mean those materials which are in the possession of the prosecution but those in the possession of the investigative agency which should be known to the prosecution. This proposition is not an easy one to define let alone to enforce but we must strive for it otherwise the spectre of convictions being overturned on appeal when undisclosed material surfaces is one which does little for public confidence in the administration of justice. Last month the Bar Conference in London was told that the new Criminal Procedure and Investigation Act 1996 would enable the prosecution to withhold evidence that could be important to the defence and may lead to miscarriages of justice. The legislation permits the prosecution to withhold disclosure of materials that do not undermine the prosecution case or were not essential to the defence. How this is assessed in the absence of detailed knowledge of the defence I do not know. Why the defence should show its hand before the prosecution makes full disclosure is also a mystery to me. I am sure that we will hear more of this from Michael Hill QC later in the program. I am honoured and grateful for the opportunity of being asked to deliver one of the keynote addresses today and I thank you for your attention.
1 Sir Gerard Brennan, Key Issues in Judicial Administration, a joint presentation with Sir Thomas Eichelbaum, Chief Justice of New Zealand to the 15th Annual Conference of the AIJA, Wellington, 20-22.9.96 2 (1992) 177 CLR 292 3 Compare, however, NSW and Tasmania where there is power to award costs to a successful defendants in proceedings on indictment in limited situations. On the other hand, following the High Court's decision in Latoudis v. Casey (1990) 170 CLR 534, New South Wales enacted legislation effectively reversing that decision - see s41A and 81, Justices Act 1901 (NSW). 4 Australian Law Reform Commission, "Costs Shifting - who pays for litigation" (Report No. 75), Chapter 7 5 (1990) 170 CLR 534 6 Paragraph 2.10(p) Commonwealth Prosecution Policy Statement 7 Much of the material in this and the following sections is either repeated or adapted from various previous papers on this topic, viz: Managing Complex White Collar Crime Cases in the 1990's - Reforming Legislation or Changing the Culture, National Conference on Investigation and Prosecution of Complex White Collar Crime, Melbourne 15.6.92 (with J McCarthy); The New Procedures for the Prosecution of Complex Fraud - Will They Work?, a paper delivered at the 28th Australian Legal Convention, Hobart; The Prosecution of Complex Fraud; Lessons for the Criminal Justice System? - Civil Justice Reform: Streamlining the Process, Litigation Reform Commission, Brisbane 8.3.96; 8 Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure 9 Justice Badgery-Parker The Criminal Process in Transition: Balancing Principle and Pragmatism - Part 2 (1994-5) 4 Jrnl Jud Admin 193 at 200. 10 op cit n 3 at 202. 11 S611A, Criminal Code (WA); 12 S285A, Criminal Law Consolidation Act 1935 (SA); 13 Aronson Managing Complex Criminal Trials: Reform of the Rules of Evidence and Procedure, Australian Institute of Judicial Administration Incorporated, 1992 page 39. 14 Contribution to the AIJA Criminal Case Management Working Group Project, 24.8.95. 15 Nader QC, Report on Complex Criminal Trials, 3.6.93 16 Nader JA QC Submission to the Honourable Attorney General Concerning Complex Criminal Trials, 1993 at page 31 17 Proposals for Reform of Complex Cases, Law Society Journal , March 1993 67 at page 68. 18 Justices Badgery-Parker and Simpson, Criminal Case Management, 5th AIJA Higher Courts Case Management Conference, Brisbane 9.3.96 19 See, Justice Badgery-Parker The Criminal Process in Transition: Balancing Principle and Pragmatism - Part 1 (1994-5) 4 Jrnl Jud Admin 171 at 172. 20 Except the defence of alibi which now is almost universally required by statute to be disclosed. 21 Civil Justice Reform: Streamlining the Process - "Lessons for the Criminal Justice System?", Brisbane, 8.3.96. 22 Criminal Evidence (Northern Ireland) Order, 14 November 1988; s34 - 37 Criminal Justice and Public Order Act 1994 (UK); s122(1) Criminal Procedure Code (1980) (Sing). 23 Environment Protection Authority v Caltex (1993) 18 CLR 477 24 Petty v The Queen (1991) 173 CLR 95 25 Weissensteiner v The Queen (1993) 178 CLR 217 26 Sir Anthony Mason, Fair Trial, (1995) 19 Criminal Law Journal at page 10 27 Christopher Jay, Remaking the Law, Australian Financial Review 13.9.96 28 I note that the Criminal Procedure and Investigation Act 1996 (UK) makes general provision for defence pre-trial disclosure. 29 Mack K and Anleu S R, Pleading Guilty: Issues and Practices at page 16 30 ibid at page 42 31 Uren, Sgt K "Diversionary Conferences" (1994) 152 The Law Society of the Australian Capital Territory 36; "Diversionary Conferencing and the Reintegrative Shaming Experiment " (1995) 157 The Law Society of the Australian Capital Territory 41 32 Justice Davies and Sheldon S A Some Proposed Changes in Civil Procedure: Their Practical Benefits and Ethical Rationale (1993) 3 Jrnl Jud Admin 111 at 121. 33 NSW Law Reform Commission Discussion Paper 12 (1985) par 2.27 34 S7, Juries Act 1927 (SA); S651A, Criminal Code (WA); S32, Criminal Law Procedure Act 1986 (NSW); S68B, Supreme Court Act 1933 (ACT) 35 Justice Heenan Trial by Judge Alone (1994-5) 4 Jrnl Jud Admin 240 at 241. 36 op cit n 3 at page 199 37 The Committal in Australia , 1990 AIJA Report at 93 38 ibid at 94